Judge: Lee W. Tsao, Case: 22STCV23004, Date: 2024-02-14 Tentative Ruling
Case Number: 22STCV23004 Hearing Date: April 4, 2024 Dept: C
MCCLENON v. CITY
OF CERRITOS
CASE NO.: 22STCV23004
HEARING: 04/04/24
#6
Defendant COUNTY OF LOS ANGELES’s Motion for Summary
Judgment is GRANTED.
Moving Party to give notice.
Plaintiffs’ Request for Judicial Notice is GRANTED. (Cal.
Ev. Code §452.)
This action for premises liability was filed by Plaintiffs
JERRY MCCLENON, individually and as Successor-In-Interest to the Estate of
DAVID WALTER MCCLENON, Deceased; KELLY MCCKENON, individually; and DAWN
KASARDA, individually (collectively “Plaintiffs”) against Defendants CITY OF
CERRITOS (“City”); and BRIGHTVIEW TREE CARE SERVICES, INC. (“Brightview”)
(collectively “Defendants”) on July 18, 2022.
On November 7, 2022 the operative First Amended Complaint
(“FAC”) was filed. Plaintiffs allege that “[t]his action involves a trip and
fall on a defective public sidewalk located between 13745 and 13751 Beach
Street in the City of Cerritos, County of Los Angeles, State of California.”
(FAC ¶1.) “Plaintiffs…allege[] that on or about September 26, 2021, the City of
Cerritos maintained the sidewalk located between 13745 and 13751 Beach Street
Cerritos, CA 90703…. Defendant Brightview Tree Care Services Inc., performed
tree trimming and related arborist maintenance at or near the subject PREMISES
on March 5, 2021. Because of Defendant the City of Cerritos’ and Defendant
Brightview Tree Care Services Inc.’s blatant neglect and failure to maintain,
repair, and control the sidewalk and parkway located between 13745 and 13751
Beach Street Cerritos, California—the Decedent sustained fatal injuries.” (FAC
¶20.) Plaintiffs allege that “[p]rior to September 26, 2021, an employee or
employees of Defendant the City of Cerritos, negligently designed, built, constructed
and/or maintained the PREMISES in that the height, slope, vertical displacement
and/or the tree selection and/or placement exceeded reasonable design guidelines
and practices relating to the public sidewalk and public parkway.” (FAC ¶25.)
The FAC asserts the following causes of action:
(1) Dangerous
Condition of Public Property against City of Cerritos;
(2) Negligence
against Brightview Tree Care Services, Inc.;
(3) Premises
Liability against Brightview Tree Care Services, Inc.; and
(4) Wrongful
Death against all Defendants
Defendant/Cross-Complainant City of Cerritos moves for
summary judgment as to the first and fourth causes of action on the following
grounds: (1) Plaintiffs cannot establish that the uplifted portion of the
sidewalk is what caused Decedent to fall; (2) The alleged dangerous condition
is trivial as a matter of law; and (3) Plaintiffs’ fourth cause of action for
wrongful death fails for the same reasons that the first cause of action fails.
Although separated
in to two causes of action, both theories are derivative of negligence. This is
a wrongful death action based on a duty arising from premises liability. The
elements of a premises liability claim and negligence claim are the same: a
legal duty of care, breach of that duty, and proximate cause resulting in
injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Wrongful
death requires the wrongful act or negligence to cause the death of another. (Nogart
v. Upjohn Co. (1999) 21 Cal.4th 383, 404.)
“A public entity is
liable for injury caused by a dangerous condition of its property if (1) the
property was in a dangerous condition at the time of the injury; (2) the
dangerous condition caused the injury; (3) the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was injured; and (4)
that either (a) a negligent or wrongful act or omission of an employee of the
public entity within the scope of his employment created the condition, or (b)
the public entity had actual or constructive notice of the dangerous condition
in time to have taken measures to protect against the dangerous condition.” (Moncur
v. City of Los Angeles (1977) 68 Cal.App.3d 118, 123; Govt. Code §835.)
Gov. Code §830.2
provides: “A condition is not a dangerous condition […] if the trial or
appellate court, viewing the evidence most favorably to the plaintiff,
determines as a matter of law that the risk created by the condition was of
such a minor, trivial or insignificant nature in view of the surrounding
circumstances that no reasonable person would conclude that the condition
created a substantial risk of injury when such property or adjacent property
was used with due care in a manner in which it was reasonably foreseeable that
it would be used.”
“The trivial defect
doctrine is not an affirmative defense. It is an aspect of a landowner’s duty
which a plaintiff must plead and prove. The doctrine permits a court to
determine whether a defect is trivial as a matter of law, rather than
submitting the question to a jury. ‘Where reasonable minds can reach only one
conclusion – that there was no substantial risk of injury – the issue is a
question of law, properly resolved by way of summary judgment.”’ (Stathoulis
v. City of Montebello (2008) 164 Cal.App.4th 559, 567.) “Several decisions
have found height differentials of up to one and one-half inches trivial as a
matter of law. (Id. at 568.) “However, it is also true that as ‘the size
of the depression begins to stretch beyond one inch the courts have been
reluctant to find that the defect is not dangerous as a matter of law.
Moreover, size alone is not determinative of whether a rut presents a dangerous
condition. It is just one of several factors…. We must also consider the nature
and quality of the defect, the time of day and lighting conditions when the
accident occurred, and whether there is evidence of anyone else has been
injured by the same defect. [Citations Omitted.]” (Id.) “Thus, our
analysis of whether the sidewalk defect here is trivial as a matter of law
involves two steps. First, we review evidence of the type and size of the
defect. If that analysis reveals a trivial defect, we then consider evidence of
any additional factors [bearing on whether the defect presented a substantial
risk of injury]. If these additional factors do not indicate the defect was
sufficiently dangerous to a reasonably careful person, then we will deem the
defect trivial as a matter of law. [Citations Omitted.]” (Nunez v. City of
Redondo Beach (2022) 81 Cal.App.5th 749, 758). “Aside from the size of the
defect, the court should consider whether the walkway had any broken pieces or
jagged edges and other conditions of the walkway surrounding the defect, such
as whether there was debris, grease or water concealing the defect, as well as
whether the accident occurred at night in an unlighted area or some other
condition obstructed a pedestrian’s view of the defect.” (Caloroso v.
Hathaway (2004) 122 Cal.App.4th 922, 927.)
Here, the City
argues that the trivial defect doctrine bars liability against the City because
the height differential is trivial, arguing that the Subject Incident occurred
on a bright and sunny morning; there
were no broken or jagged edges on the Subject Uplift; there no obstructions at
the Subject Uplift on the date of the Subject Incident; the Decedent was
familiar with the area where the Subject Incident occurred as he resided
immediately next-door to the Subject Location for almost 44 years; and the City
has not received any pre-incident complaints related to the Subject Uplifted
portion of the sidewalk, going back as far as August 2011.
In Opposition,
Plaintiffs argue that there is sufficient evidence to show that the Decedent
tripped on “an uplift” and that the dangerous condition at issue here should
not be limited to the just the one uplift that actually connected with the
Decedent’s shoe. Rather, Plaintiffs contend that “despite walking in a
completely reasonably manner, [Decedent] lost focus or became distracted by
other uplifts in his vicinity, falling victim to the ‘you saw this uplift and
that uplift, but not the other uplift’ trap.” (Opp. 5:1-3.)
The parties do not
dispute that the Subject Incident occurred during the early morning hours
between 8:00 and 9:00 a.m. on September 26, 2021. (SS Nos. 1 and 2.) It is
undisputed that the Decedent’s wife, and only witness to the Subject Incident,
Jerry McClenon was walking directly behind the Decedent at the time of the
Subject Incident. (SS Nos. 3 and 4.) It is undisputed that Jerry McClenon was
unable to confirm what caused the Decedent to fall. (DMF No. 5.)
The City proffers
the expert declaration of licensed mechanical engineer in the State of
California, Ned Wolfe. (Wolfe Decl., ¶1.) After reviewing photographs taken by
the plaintiffs, and by the claims administrator for the City, Mr. Wolfe
testifies as follows: “To a reasonable degree of scientific certainty,
Photographs of the uplifted sidewalk where the incident occurred show a clean
uplift of the sidewalk concrete slab with no jagged edges, no cracking, and no
broken or missing pieces of concrete. [¶] To a reasonable degree of scientific
certainty, the photographs of the uplifted portion of the sidewalk taken by Mel
Zapf show a maximum vertical uplift of 5/8th of an inch. [¶] To a
reasonable degree of scientific certainty, the maximum size of any uplift,
i.e., vertical disparity or heigh[t] differential, in the sidewalk uplift where
the incident allegedly occurred, measured 5/8th of an inch.” (Wolfe
Decl., ¶¶9-11.)
In Opposition,
Plaintiff submits the declaration of Jerry McClenon stating that “it seemed
obvious and outside the realm of dispute that [Decedent] had tripped on the
uplift; and… they were more concerned with Mr. McClenon being seriously injured
at the time.” (Plaintiffs AMF No. 8.) Plaintiffs also submit evidence showing
that “[i]n addition to the uplift that [Decedent] physically tripped over, the
City has identified two other uplifts in the immediate vicinity, which it
describes as the larger and other uninvolved uplifts. [¶] The ‘other’ uplifts
are located at 13745 Beach Street and 13751 Beach Street, west of the location
where the incident occurred.” (Plaintiffs AMF Nos. 13-14.)
Plaintiffs neither
contest that the Subject Uplift that caused Decedent’s fall was 5/8th
of an inch, nor submit any competing measurements (expert or otherwise). However,
Plaintiffs argue that the City’s measurements are speculative and should be
disregarded because they were taken by unqualified lay witness- Mel Zapf, a
Claims Examiner for the City. Plaintiffs object to the accuracy of the measurements
taken by Zapf. Plaintiffs argue that at the time the measurements were taken,
“Ms. Zapf had not received any training or professional instruction regarding
the use of a combination square…. To the City’s knowledge, Ms. Zapf is not a
trip and fall expert witness and has never been designated as an expert
witness; and…. Ms. Zapf does not have any degrees or formal training in
engineering.” (Opp. 3:2-14.)
The fact that the
City did not engage the services of an engineer or some other qualified expert
to operate the combination square does not create a genuine dispute of material
fact precluding summary judgment. “[Plaintiffs] could have measured (or obtained
the services of an engineer to measure) the defect, but chose not to do so.
Because [Plaintiffs] fail[] to provide any competing measurements of the
defect, the Court treats [the City’s] measurements, which are supported by
photographs in the record, as uncontroverted for the purpose of deciding the
instant motion.” (Boogren v. Costco Wholesale Corporation (2020) WL
11772531.)
Construing the
evidence in the light most favorable to Plaintiffs and making all reasonable
inferences in Plaintiffs’ favor, the Court finds that Plaintiffs have failed to
meet their burden to establish a triable issue of fact that the Subject Uplift
defect is not trivial as a matter of law.
Accordingly, the
City’s Motion for Summary Judgment is GRANTED.
Plaintiffs’
Evidentiary Objections to the Declaration of Ned Wolfe
1.
Overruled
2.
Overruled
The City’s
Evidentiary Objections to Plaintiffs’ Request for Judicial Notice
1.
Overruled
The City’s
Evidenitary Objections to the Declaration of Jerry McClenon
1.
Overruled
2.
Overruled
3.
Overruled
4.
Overruled
5.
Overruled
6.
Overruled
7.
Overruled